On Offense

The number of bid protests filed by contractors is on the rise. In the Government Accountability Office's fiscal 2010 bid protest report to Congress, the watchdog agency said the number of protests filed in fiscal 2010 was up 16 percent from fiscal 2009, and 73 percent from fiscal 2006. Despite those spikes, federal managers do have opportunities to combat the snowballing trend.

In a recent issue of Defense AT&L Magazine, industry executive Steve Roemerman published the results of an informal poll of 59 private sector contracting professionals based on the question: Why do [Defense Department] contractors file protests? The answers run the gamut, from "The decision-maker at the contractor expects to win" to "The government really does make mistakes."

Industry professionals also told Roemerman, chairman of the Texas-based consulting firm Lone Star Aerospace Inc., that protests frequently are filed in a strategic attempt to delay the award or program, or as part of a "yelling at the referee" type of strategy, where the company doesn't expect to win the protest but could increase the likelihood of a more favorable outcome in the future.

What is striking about Roemerman's survey is contractors are not simply doing straightforward cost-benefit analyses to determine when they should protest. In many cases, protests are filed out of frustration or anger at how a competition has been handled.

When this is the case, procurement officials have a real opportunity to quiet protests, keep their programs on track and save taxpayers millions.

Roemerman's suggestions, based on respondents' comments on what motivates companies to file protests, include:

• Communication. Encourage government officials to talk about the costs and downsides of protest filing, as well as the odds of winning a protest. Roemerman makes clear this is not meant to be a threat, but an opportunity to provide a company with relevant information, especially if a particular office or command has a low rate of protest sustainment.
• Compliance. Submit timely and complete debriefs, making sure the focus is on outlining the merits and failures of the various bids rather than on preventing protests, Roemerman says. "When I say complete, I don't mean saying anything proprietary about the winner, or baring your soul in some inappropriate way," he said in an interview. "The [Federal Acquisition Regulation] has a checklist in it of things that ought to be in a protest … [adhering to that list] puts the government in a position of coming across as we have nothing to hide." Roemerman is baffled by the frequent failure of federal officials to adhere to this checklist, saying he has even witnessed debriefs in which contracting officers leave out something as vital as disclosing who the winners were. This type of oversight is bound to infuriate the losers. Failure to follow the FAR doesn't occur only at the debrief stage. As various Defense organizations develop their own sets of rules, contracting personnel face the difficult decision of choosing to follow local policies outlined by their immediate bosses, or to comply with the federal regulations. "The rules are added on with the best of intentions, but the fact is those extra rules get interpreted in ways where people have to choose … and that's a huge setup. FAR compliance, as simple as it sounds, is a big one," Roemerman says.
• Follow-up. Keep lines of communication open even after a protest has been filed. Roemerman tells the story about a program executive officer, who despite advice to the contrary, called the president of a company that had filed a protest. During that conversation, the PEO assured the president he understood the company's right to protest, but offered to answer any questions he could about the competition. While the two didn't come to an agreement about the outcome of the award, the industry executive was satisfied enough to withdraw the protest. "I think that's very instructive, because generally once you see a contractor begin to spend money on the protest law firm, it's like dropping a ball and letting gravity take over," Roemerman says. "It's almost inevitable they'll file the protest, but not in this case."

Elizabeth Newell covered management, human resources and contracting at Government Executive for three years.